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Father Opposes Present Spend Time Arrangements with Children

Jerrim & Palmar [2021] FCCA 1561 (9 July 2021)

The parties have five children.  Upon their separation, the mother sought sole parental responsibility asserting that the father poses an unacceptable risk to the children.  The Court, in adjudicating this case, was guided by whether the presumption of equal parental responsibility applies in the best interests of the children, assessing risk of unacceptable harm and the dangers of family violence and examining what a meaningful relationship with the Children would look like given the facts of this case. 

Facts:

The applicant father and respondent mother commenced their relationship at the beginning of 2010 and ended their relationship on 8 May 2018.  They are parents to V, X, Y, AND Z.  The children have not spent any overnight time with the father since 8 May 2018.  The father's supervised time with the children has been difficult to manage and the father believes this is as a result of the mother’s refusal to facilitate a relationship between the children and him.   

The mother asserts that the father poses an unacceptable risk due to his history with domestic violence and that his time with the children should be supervised.  The father seeks orders to spend time with the children every weekend for three nights, asserting that he was often the primary carer for the children prior to separation. 

The Independent Children’s Lawyer sets out orders for alternative Saturday time between the children and the father with the children’s time being limited to 2 hours and into groups.  In the alternative, should there be a finding of unacceptable risk, that the children’s time with the father occur on the first Saturday of each calendar month, again limited to 2 hours and again in two groups and that that time be supervised by a person agreed between the parties.

Issues:

I. Whether the mother should have sole parental responsibility.

II. Whether the father poses an unacceptable risk to the children.

Applicable law:

Family Law Act 1975 (Cth) pt VIIss 60B60CC60CG61DA - provides that Court orders should be made in accordance with the best interests of the children, that the Court should make a determination as to whether the presumption applies and if it does not whether it would otherwise be in the best interests of these children for their parents to have an order for equal shared parental responsibility. 

I am asked to make a finding that the father poses an unacceptable risk and in doing so I note the provisions of section 140 of the evidence act 1995 (Cth).

Justice Murphy in Harridge & Harridge [2010] FamCA 445 after referring to the High Court test, case law and secondary sources listed a number of questions that may assist in assessing risk as follows:


(a) what harmful outcome is potentially present in this situation;

(b) what is the probability of this outcome coming about;

(c) what risks are probable in this situation the short, medium and long-term;

(d) what are the factors that could increase or decrease the risk that is probable;

(e) what measures are available whose deployment could mitigate the risks that are probable.

In T & N [2003] FamCA 1129; (2003) FLC 93-172 Justice Moore adequately set out the dangers relating to family violence when he said:

“It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the well-being of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them.  There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation.  They are terrified and simultaneously come to accept it is an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence....... One could go on to the impact upon their ability to form attachments, and so on.”

McCall v Clark [2009] FamCAFC 92: If I am satisfied that they should have a meaningful relationship with their father then I must frame orders to ensure that the children are able to have a meaningful relationship with him. 

ASSESSMENT OF THE EVIDENCE

The primary considerations are set out in section 60CC(2) of the Act. It is well accepted the children will benefit from having a meaningful relationship with each of their parents.

Justice Brown in the decision of Mazorski v Albright [2007] FamCA 520 said the following in relation to the definition of meaningful at paragraph [26]:

“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant “which, in turn, is generally used as a synonym for “important “or “of consequence”. I proceed on the basis that when considering the primary considerations in the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.....”

Analysis:

The children are distant from the father and it was noted by the family report writer’s that he was not proactive in engaging with the children which led the children to effectively occupy themselves whilst with him.  As provided for in the evidence, the father has exposed the family to violence and that the father lacks insight and understanding as to his role as a parent.  At times, he would neglect the children and place them in danger since he does not understand  the need to adequately supervise, protect and provide for these children.

The evidence supports a finding that the parents do not have a cooperative co-parenting relationship and that there is no effective communication between them.  The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of a child or family violence.

Conclusion:

The Court concluded that the Father poses an unacceptable risk to the children.  The Court ordered that the mother have sole parental responsibility for the children.  The Mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with her.  The Father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with him.  The children are ordered to live with the Mother. The children are ordered to spend supervised time with the father on a saturday for two hours six times each year.

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